In recent consulting projects I’ve found myself revising client contracts that address issues as both statements of fact and grounds for termination, as in this made-up example: Widgetco states that the Widgets are in good working condition. Acme may terminate this agreement if the Widgets are not in good working condition. My book The Structure […]

I bring you glad tidings of a new post by Glenn West on Weil’s Global Private Equity Watch blog. It’s entitled On Naval Ramming Bows and Contractual Boilerplate—Are Standard “No Third-Party Beneficiary” Clauses Always a Good Thing? To whet your appetite, I present you the key bits: Glenn reminds us of the limited utility of no-third-party-beneficiary […]

[Updated 3 February 2017] On 30 January I rolled out in this post a new version of the introductory part of my severability language. That prompted me to look at the rest of it, and I realized that it didn’t work. For example, “then that provision will be modified”? Passive voice? Who’s the actor? And […]

Because (@FlemingMF) posted on my blog way back in the early days, I’ve been in the habit of referring to him as “the ur-commenter.” But since I’m perhaps one of 227 people in this country familiar with use of ur– as a prefix, I’ve decided that “Commenter Zero” is a better moniker. Wear it with pride, […]

I love it when after writing about a usage and describing it as awkward, I’m able to demonstrate that it’s not only awkward, it can also lead to fights. Today’s example of that is my December 2015 post about how to express termination with prior notice (here). Today a reader emailed me as follows: Suppose a termination […]

Glenn West blogs. He has also grown a hipster beard and moved to Brooklyn. Actually, that last bit isn’t true. But he did recently contribute this post to Weil Gotshal’s Global Private Equity Watch blog. It’s about the recent decision of the Delaware Court of Chancery in FdG Logistics LLC v. A&R Logistics Holdings, Inc., to the […]

Consider the following: No Implied Licenses. Except as expressly set forth in this Agreement, neither Party grants any license under its intellectual property rights to the other Party. First, let consider what an implied license is. Here’s what Melvin F. Jager, Licensing Law Handbook § 1:25 (2015) has to say (citation omitted): Under this implied license theory, the […]

If a contract provision isn’t the focus of the deal, there’s a good chance people won’t have given it much thought, so there’s a good chance that it doesn’t make sense. Consider the notion of licensee liability for a sublicensee’s misconduct. Straightforward, right? But how do you express it? I scattered some roach bait traps on EDGAR […]

I’m no fan of saying in a contract that certain provisions survive termination. See MSCD 13.642 and this 2006 post. Heck, even the Delaware Chancery Court noticed that. But if simple survival isn’t enough, you can layer futility upon futility. At the suggestion of a reader, I dug up the following: Those provisions that by […]